The proviso in the Calcutta House Rent Control Order does not come into play until the Sub-section to which it is a proviso has been invoked by the defendant.

ORDER

Henderson, J. - This Rule has been obtained by the defendant against an Order allowing an amendment of the plaint. It raises a question of pleading in connexion with the application of the Calcutta House Rent Control Order. The amendment was made in Order to make out a case under Clause (c) of the proviso to Section 9 (1) of the Order and is in these terms:

That the defendant is a most troublesome recalcitrant, vexatious and dishonest tenant who gives the plaintiff as much trouble as possible by withholding payment of rent and by raising various false and dishonest pleas when the plaintiff is compelled to file suits against him for recovery of the same and it is most desirable in the interest of your petitioner that he should be evicted from the premises in suit and further the plaintiff bona fide requires the premises for his own occupation for locating the expanding Order supplying business of the plaintiff's son.

The learned Munsif has not given any reasons for allowing the amendment. On the merits it is contended that the application for amendment should have been rejected as introducing scandalous allegations and made mala fide while the last part undoubtedly raises a case within the proviso, the introductory part appears to be mere padding couched iin rather offensive terms. Mr. Sen explained that the first part was intended to raise a ease under the words "any cause which may be deemed satisfactory by the Court." Those words require judicial interpretation, and until they are so interpreted, it is impossible to strike this allegation out of the plaint on the ground that it is irrelevant or scandalous.

2. Upon the contents of the application the Contention of the petitioner is that the allegations are false. Of course in one sense an application for amendment based on false al-legations cannot be bona fide. That, however, is a matter for investigation at the trial itself. The prayer for amendment was due to the introduction of this Order which was not in force when the plaint was filed. It is, therefore, impossible to reject it on the ground that it was not made bona fide.

3. On this view, it becomes necessary to conisider whether as a matter of pleading the amendment should have been allowed. This implies that the proviso gives landlords a new cause of action and that, even though the plaintiff fails on his original case, he may ob-tain a decree for ejectment by making out a case within the proviso. This would indeed be a strange provision to find in an Order which was obviously made for the benefit of tenants. The effect is really the opposite; protection is given to a tenant who apart from the provisions of this Order would be liable to ejectment. It is, therefore, for the defendant and not the plaintiff to raise the question. Whether this should be done by a formal application to amend the written statement or by a petition it is not now necessary to decide. Suffice it to say, that disputed questions of fact may arise and that in whatever form this defence may be raised the plaintiff will be entitled to every opportunity to meet it. The point to note now is that it is only when it succeeds that it becomes ne-nessary for the plaintiff to put forward a case under the proviso.

4. It is apparent that there may be Some difficulty in practice in dealing with Section 9. It appears from its terms that it applies both to execution proceedings and to suits. It might certainly lead to inconvenience if a suit were dismissed under this section without a deter-1944 C/10 & 11 mination of the real dispute between the parties and it may be, as Mr. Ohakravarti suggested, that the proper course would be to keep such a suit pending and decree it later if the defendant by his subsequent conduct disentitles himself to the protection of the order. Be that as it may, the defendant has not yet attempted to take advantage of the section and, until he does so, no question with regard to it will arise for consideration. He may be quite confide